NEIC
'EPA-33012-9-78-001-R
NEIC POLICIES AND PROCEDURES MANUAL
May 1978
[Revised August 1991]
U.S. Environmental Protection Agency
Office of Enforcement
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT
EPA-33012-9-78-001-R
NEIC POLICIES AND PROCEDURES MANUAL
May 1978
[Revised August 1991]
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
Denver, Colorado
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FOREWORD
The National Enforcement Investigations Center (NEIC) is the
organizational element of the Office of Enforcement which provides a full range
of technical, investigative, and litigation support expertise for the Agency's
administrative, civil, and criminal enforcement cases. NEIC focuses on those
nationally and regionally significant enforcement initiatives which require:
• Development and/or application of new methods and procedures/
approaches for enforcement investigations, case development/
management, and resolution
• Methods/procedures developed and used for a specific project or
case in one region which can be applied nationally or on a multi-
regional basis for improving the EPA enforcement program and
addressing and achieving risk reduction objectives
• Evaluation, review, and/or support of proposed pollution controls,
abatement, and remedial measures applying innovative
engineering and scientific technology with subsequent widespread
application
• Investigation of special environmental compliance problems where
an initial application and/or innovative interpretation of statutory
and regulatory requirements is necessary
• Defense of the methods and techniques used and/or positions
taken by the government during legal proceedings/settlement
negotiations
• State-of-the-art litigation support, information/records
management, and evidence audits for the Agency's priority cases.
NEIC maintains expert staff and sophisticated equipment capabilities
for conducting investigations throughout the United States. NEIC has the
ability to:
• Plan and manage a wide range of environmental investigations
Conduct comprehensive multi-media investigations
Gather and analyze information on facilities and
businesses from a variety of EPA and other databases
Perform industrial process evaluations
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Evaluate the adequacy and validity of data collection and
analyses
Review and develop analytical techniques, methodologies,
and computer information systems
• Implement enforcement strategies in coordination with the Office
of Enforcement, other EPA Headquarters and Regional Offices
Assist in the preparation of cases for litigation
Provide specialized and expert testimony on a wide variety
of subjects
Provide assistance to EPA's delegated state enforcement
programs including state criminal enforcement efforts
• Provide training to federal and state employees regarding
environmental investigations and enforcement*
The primary objective of NEIC is to provide expertise and resources for
development and support of federal and state civil and criminal enforcement
cases. To meet this objective, NEIC has established the following policies and
procedures. These emphasize the need to (a) thoroughly understand the
applicable environmental laws and regulations; (b) clearly identify project
objectives; and (c) adequately plan and implement all field, laboratory, and
other support activities.
The goal of this manual is to present procedures for collection and
development of admissible and defensible evidence in support of the Agency
' enforcement programs. In instances where these prescribed procedures are
inappropriate or inadequate, NEIC personnel may use alternate procedures
after securing the approval of their supervisor or consulting with the
Enforcement Specialist Office, as appropriate.
This manual contains policies and procedures developed solely to provide
internal guidance to NEIC employees and its contractors. The policies and
procedures which are set forth do not create any rights, substantive or
procedural, enforceable at law by a party to litigation with EPA or the United
States.
NEIC makes available, through various forums, the expertise it has developed by
conducting enforcement investigations, supporting litigation/settlement negotiations,
etc.
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CONTENTS
FOREWORD i
ORGANIZATION CHART iii
I. GENERAL POLICIES AND PROCEDURES
CONFLICTS OF INTEREST, GIFTS, AND GRATUITIES 1
PUBLIC RELATIONS 2
ENTERING FACILITIES 2
Authority 2
Entry Procedures 5
Denial-of-Entry Procedures 6
INVESTIGATIONS OF ALLEGED CRIMINAL ACTIVITY 6
COMMUNICATIONS EXTERNAL TO OFFICE OF
ENFORCEMENT 7
Requesting Information from Persons Subject to
Regulation 9
Disclosure of Official Information to the Public 10
FOIA Response Procedures 10
II. PROJECT MANAGEMENT
PROJECT REQUEST 12
PROJECT TEAM FORMATION 15
Civil Investigations 15
Criminal Investigations 16
BACKGROUND INFORMATION REVIEW 16
PROJECT PLAN PREPARATION 17
PROJECT PLAN IMPLEMENTATION 20
REPORT PREPARATION 20
ENFORCEMENT CASE SUPPORT 22
HI. EVIDENCE MANAGEMENT
SAMPLE CONTROL 24
Sample Identification 24
Split Samples 25
Chain-of-Custody for Samples 26
Sample Custody 26
Transfer of Custody and Shipment 29
Laboratory Custody 29
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CONTENTS (continued)
HI. EVIDENCE MANAGEMENT (continued)
f
DOCUMENT CONTROL 32
Project Logbooks 33
Sample Tags 34
Chain-of-Custody Records 34
Lidar Magnetic Tapes 35
Laboratory Records 35
Photographs 36
Corrections to Documentation 37
Consistency of Documentation 37
Branch/Division Files 38
Evidentiary Piles 38
Litigation Documents 39
Confidential Business Information 39
EVIDENCE AUDIT 40
QUALITY ASSURANCE 41
APPENDDC
Witness Guidelines
FIGURES
1 • Project Management Procedures 13
2 Receipt for Samples 27
3 Completed Receipt for Samples 28
4 Chain-of-Custody Record 30
5 Completed Chain-of-Custody Record 31
TABLES
1 Authorities Granted Under Federal Environmental Laws and
Regulations for Administrative/Civil Investigations 3
2 Transmittal of NEIC Documents and Correspondence 8
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EnvlronnwnBl Protection Agency
Office ol Enforcement • National EntarewiMni toveeiigeaone Center
P.O. BQI asar. Dfc. Denver, co sons
SPECIAL ASSISTANT
Charles W Murray Jr
DIRE(
Frank M. <
:TOR
Covtngton
DEPUTY DIRECTOR
Carroll G. Wills
ASSISTANT DIRECTOR.
PLANNING A MANAGEMENT
Elizabeth Craig
1
INFORMATION
MANAGEMENT BRANCH
Robert H Laidlaw.
EVIDENCE AUDIT/QUALITY
ASSURANCE UNIT
Paula J. Smjth
NFORMATtON SERVICES
SECTION
Charter* M Swftas
DATA SYSTEMS SECTION
George C Allison
ADMINISTRATIVE SERVICES
BRANCH
Leslie 8 Ogden
HUMAN RESOURCES
SECTION
Virgw M. Parr
SUPPORT SERVICES
SECTION
Jane E.Cnadboume
CHlEr ENFORCEMENT
Chanes R Ascrwanaen
1
ASSISTANT DIRECTOR
LABORATORY SERVICES
Gary 0 Young
1
CHEMISTRY BRANCW PESTICIDES A TOXIC
CHEMISTRY BRANCH SUBSTANCES BRANCH
-30* H Lom* Dean F Hill
-
»MsnSmSSisenM - COMPLIANCE SECTION
K.EneNonngharn Diane E. Bradway
Al
INSTRL
SI
Oooqta
PHUbO
WENTATK3N L ANALYTICAL SECTION
ECnON v»««
DATA ANALYSIS SEC~ON
Richard C Ross
PROGRAM A
TECHNOLOGY
ADVISORY STAFF
Thomas O Oahl
ASSISTANT DIRECTOR
OPERATIONS
RobartO Harp
1
CIVIL ENFORCEMENT
SUPPORT BRANCH
GentLubwwcM
CRIMINAL ENFORCEMENT
SUPPORT BRANCH
Steve W Sisk
1
TECHNICAL A TRAINING
SUPPORT BRANCH
OonakJ C. Gipe
iii
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I. GENERAL POLICIES AND PROCEDURES
CONFLICTS IN INTEREST. GIFTS. AND GRATUITIES
Each NEIC employee is expected to promote public confidence in the
integrity, reliability, and dependability of the Environmental Protection
Agency. Employees are required to perform their duties in a dignified, tactful,
courteous, and diplomatic manner, as the situation dictates. At all times they
must comply with the regulations governing EPA employee conduct (40 CFR
Part 3). Employees should consult their supervisors and/or the Enforcement
Specialist Office for guidance on ethics issues. For general information
regarding ethics refer to:
Ethics in a Nutshell. . .Ethical Conduct for EPA Employees. . .in Brief.
U.S. EPA, Office of the Inspector General (March 1988)
U.S. EPA Employee Responsibilities and Conduct. U.S. EPA Office of
General Counsel (February 1984)
EPA's Guidance on Ethics and Conflicts of Interest (February 1984)
Employees shall avoid actual and apparent conflicts of interest through
outside employment and other private interests or activities. A conflict of
interest may exist whenever an EPA employee has a direct or indirect personal
interest in a matter which is related to his official duties and responsibilities.
Each NEIC employee must avoid even the appearance of a conflict of interest
because the appearance of a conflict damages the integrity of the Agency and
its employees in the eyes of the public. All employees must, therefore, avoid
situations which are, or give the appearance of, conflicts of interest when
dealing with others in or outside the government. Any information acquired
during an employee's duties is for official use only.
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An employee is forbidden to solicit or accept any gift, gratuity,
entertainment, favor, loan, or any other item of monetary value from any
person, corporation, or group which has interests that may be substantially
affected by such employee's official actions, or which conducts operations
regulated by EPA. Further guidance on EPA's policy for accepting gifts,
gratuities or entertainment may be found at 40 CFR 3.400.
PUBLIC RELATIONS
Good working relations should be established when dealing with the
public, including personnel at facilities being investigated. This can best be
accomplished by using diplomacy, tact, and persuasion. Employees should not
speak of any person, other regulatory agency, or facility in a derogatory
manner, and should avoid providing a professional opinion on specific products
or projects.
Good public relations and common sense dictate that employees dress
appropriately for the activity in which they are engaged. This includes
wearing the proper protective clothing and using safety equipment, as
appropriate.
ENTERING FACILITIES
Authority
Federal environmental statutes grant EPA enforcement personnel
authority to enter and inspect facilities [Table 1]. Each authority is similar to
that stated below from Section 308 of the Clean Water Act.
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Tablet
AUTHORITIES GRANTED UNDER FEDERAL ENVIRONMENTAL LAWS AND REGULATIONS
FOR ADMINISTRATIVE/CIVIL INVESTIGATIONS
Inspection
Authority
Recordkeeping
Authority
Confidential
Information
(40 CFR 2.201 -2.215)
Emergency Authority
Employee Protection
Penalties
Aii
CAA 114
40 CFR 80,4. 86*
CAA 114. 208, 311
40 CFR 51, 60. 79"
CAA 208, 307
40 CFR 2.301. S3.
57.80
CAA 303
CAA 322
CAA 113
Water
CWA30B.402
40 CFR 122.41.
233.7
CWA308.402
40 CFR 122.41.
122.48. 233.7,
233.11
CWA308
40 CFR 2.302.
122.7.233.18
CWA504
40 CFR 233 38
CWA507
CWA309
40 CFR 233.28
Superiund Pesticides
CERCLA104 FIFRA8.9
40 CFR 160. 15. . •
169.3
CERCLA103 FIFRA4.8
40 CFR 160 63.
160.185-195. 169.
171.11
CERCLA104 FIFRA7. 10
40 CFR 2.307
CERCLA 104. 106 FIFRA 27
40 CFR 164. 166
CERCLA 110
CERCLA 103. 1 12 FIFRA 12. 14
EPC325
Solid Waste
RCRA 3007. 9005
40 CFR 270.30
RCRA 3001 .3002.
3003. 3004. 9003
40 CFR 262.40.
263.22. 264.74.
264 279. 264.309.
265 74. 265 94.
265.279. 265 309.
270.30. 270.31
RCRA 3007. 9005
40 CFR 2.305.
260.2.270.12
RCRA 7003
40 CFR 122.7
RCRA 7001
RCRA 3008. 9006
Dunking Water
SDWA1445
40 CFR 144.51.
142.34
SDWA 1445
40 CFR 144.51.
144.54. 141.31-33
SDWA 1445
40 CFR 2.304.
144.5
SDWA 1431
40 CFR 144 34
SDWA 1450 '
SDWA 1423. 1424.
1431. 1432. 1441
Toxics
TSCA11
40 CFR 71 7. 17.
792.15
TSCA8
40 CFR 704. 710.
717.5. 720.78. 76
761.180. 76260.
763.144. 792.185
195
TSCA14
40 CFR 2.306.
704.7. 707.75.
710.7. 712.15.
717.19.72085-9!
750 16. 750.36.
762.60. 763.74
TSCA7
TSCA23
TSCA 15. 16
86.077-7. 86.078-7. 86.441-78. 86.606. 86.1006.89
51.320-328. S7.10S. 57.305. 57.404. 58. 60.7. 61.10. 61.24. 61.69-71. 79.5. 85.407. 85.1086. 85 1906. 86.077-7. 86084-39 and 40. 86 144-78 through 82. 86.542-7
86.609.86.1009-84
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"(a)(B) the administrator or his authorized representative ... upon
presentation of his credentials
(i) shall have a right of entry to, upon, or through any premises
in which an effluent source is located or'in which any records
required to be maintained ... are located, and
(ii) May at reasonable times have access to and copy any records,
inspect any monitoring equipment or method ... and sample
any effluents which the owner or operator of such source is
required to sample."
For investigations conducted pursuant to the Safe Drinking Water Act
(SDWA), Toxic Substances Control Act (TSCA), or Federal Insecticide,
Fungicide and Rodentiride Act (FIFRA), the investigator must provide a
responsible official of the facility with a written notice of inspection. In
addition, during TSCA inspections, TSCA Confidentiality Notice forms should
be offered. At the completion of the TSCA inspection, a Declaration of
Confidential Business Information and Receipt for Samples and Documents
forms are completed, as appropriate.
Many NEIC inspections are conducted after obtaining consent from the
person(s) in charge of a site. Consent means the intentional foregoing of right
to privacy, which is not the result of either fear, ignorance, or trickery. When
obtaining consent, do not suggest that civil or criminal consequences will result
from denial of entry. Consent to photograph on-site activities during any
consensual administrative/civil investigation should be obtained before any
photographs are taken. In administrative/civil matters, if the element of
surprise is critical to the inspection, the site is unoccupied, or prior behavior
indicates that entry may be denied, an administrative search warrant may be
needed. If so, employees should consult the Enforcement Specialist Office
before the inspection is attempted.
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While consent may not be necessary for entering a public area, or for
acting under emergency conditions, no forcible nonemergency entry is
permitted into a private area without a search warrant. When consent is
withdrawn after the inspection has begun, the team shall leave the area and
follow the procedures for denial of entry as detailed below.
Entry Procedures
To comply with statutory requirements during civil/administrative
investigations, a facility should be entered in the following manner.
The plant premises should be entered through the main gate or
through the entrance designated by the facility personnel.
The inspectors should introduce themselves in a dignified,
courteous manner to a responsible plant official, clearly identify
the organization they represent, and briefly describe the purpose
of the inspection. Identification credentials will always be
presented before an inspection is commenced. A responsible plant
official may be the owner, operator, officer, or agent-in-charge of
the facility, including a person responsible for the plant's
environmental affairs.
If there is only a guard present at the entrance, the employee
should present credentials and ask the guard to call his
supervisor or the responsible official.
If the company provides a blank sign-in sheet, log, or visitors'
register, it is acceptable to sign it. However, NEIC employees
must not sign a release of liability (waiver) or any statement
which would place limits on EPA's use of the information for
enforcement purposes.
When problems or questions arise, the NEIC employee should call
his supervisor or the Enforcement Specialist Office.
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Denial-of-Entry Procedures
If entry is denied, the employee should not contest the issue with the
facility representative, but immediately do the following.
• Cite the appropriate EPA administered legislation and inspection
authority, ask if he/she heard and understood the reason for your
presence, and record the answer and any reasons given for denial
of entry.
• Record the name, title, and telephone number of the individual
denying entry as well as the date and time.
• Leave the premises.
• If consent is withdrawn after the inspection is already underway,
retain all notes, records, and samples, and remove all equipment
taken into the facility.
After leaving the facility, the inspector should, at the earliest
opportunity, document the events related to the denial of entry and inform the
appropriate NEIC supervisory personnel and the Enforcement Specialist Office.
INVESTIGATIONS OF ALLEGED CRIMINAL ACTIVITY
Participants in criminal investigations may be subject to additional
requirements governing such investigations. Because of the severe penalties
that may be imposed on the individuals convicted of violating the provisions
of the environmental laws or other statutes, there is closer scrutiny of
constitutional safeguards to protect the individual's rights. Special Agents of
the EPA, Criminal Investigations Division, will provide instructions regarding
these safeguards to the project team on all investigations in which they are
involved. From the beginning of such an investigation until it is completed,
the rights of all individuals must be fully protected.
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If, during the course of a civil/administrative inspection, aspects of
criminal activity become apparent, the inspector should obtain all the evidence
documenting the possible violation. The Criminal Investigations Division, or
the appropriate Special Agent-in-Charge must then be apprised immediately.
If a criminal investigation is opened, any files will be maintained separately
from the current (or planned) civil investigation. Where applicable, the
Agency's policy on parallel criminal and civil enforcement proceedings shall be
followed.
COMMUNICATIONS EXTERNAL TO THE OFFICE OF ENFORCEMENT
In the course of business, NEIC employees communicate with persons
outside the Agency's Office of Enforcement. Untimely releases of information
and expressions of opinions can greatly hinder NEIC's investigative activities.
Judgment is required, and supervisors should be consulted and kept informed
of all such communications. For communications regarding matters in
litigation and criminal investigations, the Enforcement Specialist Office must
be consulted.
NEIC has'established internal distribution and filing procedures for all
correspondence. Employees producing correspondence should do so through
their secretaries or check with their secretaries regarding the internal
distribution of correspondence.
Table 2 contains requirements for transmittal of specific documents and
correspondence, external to the Office of Enforcement.
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Table 2
TRANSMITTAL OF NEIC DOCUMENTS AND CORRESPONDENCE EXTERNAL TO THE OFFICE OF ENFORCEMENT
Subject Matter
Transmitted
•Signature
Required
Recipient
Response to Request for NEIC
Assistance
Project plans
Correspondence with facility
officials
Requests for Information
Draft and Rnal reports
Reports, draft and final, and other
information involving criminal
investigations
Technical reviews and any documents
related to enforcement cases
Project costs/contract costs
Procedures and Operating manuals
Nonenforcement related documents2
FOIA Denials
Director/Deputy Director/Assistant Director
(or delegates)
Director/Deputy Director/Assistant Director
Chief, Enforcement Specialist Office or
Regional Counsel
Director or appropriate Regional or
Headquarters officials'
Chief. Enforcement Specialist Office
Chief, Enforcement Specialist Office
Chief, Enforcement Specialist Office
Director/Deputy Director/Assistant Director
Planning and Management
Library
Author
Director
Division Director and Regional Counsel
and/or other requestors
Division Director and Regional Counsel
and/or other requestors
Facility being inspected
Facility being inspected, regulated
entity or appropriate individual
Division Director and Regional Counsel
and/or other requestors
Department of Justice, U.S. Attorneys,
State Prosecutors, FBI and other
criminal investigative agencies
Division Director and Regional Counsel
and/or other requestors
Requestor and Regional Counsel
As appropriate
Requestor
Requestor
1 NEIC may also prepare information requests tor transmhtal by appropriate Regional or Headquarters Officials
2 Technical guidance documents, professional papers, requests for technical Information unrelated to enforcement activities.
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Requesting Information from Persons Subject to Regulation
NEIC employees may request information from a facility before, during,
or after an on-site investigation. The environmental statutes require those
regulated to keep various records and to make them available to EPA upon
request. Several statutes also protect the trade secrets and confidential
information of the regulated community.
Any confidential information received in the mail or hand-delivered shall
be marked "Confidential" and handled as Confidential Business Information.
In compliance with EPA regulations, any written request for company
information, pursuant to statutory authority, must contain a statement
notifying the facility that it may designate all or part of the information
requested by the Agency as confidential in accordance with 40 CFR Part 2.
NEIC personnel should not accept confidential information unless it is
needed. When confidential information is entered into an inspector's logbook,
the entire logbook must be treated as confidential. The Evidence Audit Unit
(EAU) will provide the inspectors with adhesive labels and/or stamps to mark
information submittals or logbook notes of observations which are claimed to
be confidential. Where documents are provided by the company, the company
officials should be requested to mark the document to identify the material
which they claim is confidential. Confidentiality claims, which cover portions
of otherwise nonconfidential documents, should be clearly identified by
company officials. Logbooks must be marked as confidential by the inspector;
in no case shall company officials be permitted to copy or review logbooks. See
Chapter III of this manual for additional information on the treatment of
confidential business information.
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By statute, certain information, including effluent, emission, health, and
safety data is not entitled to confidential treatment.
Disclosure of Official Information to the Public
EPA policy is to make information about EPA and its work available,
freely and equally, to all individuals, groups, and organizations. This policy,
however, does not extend to confidential business information or investigatory
information relating to the suspected violation of federal laws.
Any NEIC employee who receives a request, written or verbal, for the
inspection or disclosure of NEIC investigatory records or confidential
information, including those made under judicial discovery procedures, the
Privacy Act, or the Freedom of Information Act, shall immediately advise the
Chief, Enforcement Specialist Office.
FOIA Response Procedures
The NEIC Director is delegated the authority to respond to Freedom of
Information Act (FOIA) requests directed to NEIC. This delegation authorizes
the Director to make the initial determination concerning the release of NEIC
records. The FOIA procedures and requirements contained in 40 CFR Part 2
Subpart A, EPA Order 1550.1C and the FOIA manual apply to such
determinations.
Any NEIC employee, including NEIC contractors, who receive a written
request to disclose records, must immediately forward the request, together
with its envelope, to the Enforcement Specialist Office (ESO) which will
initiate efforts to identify and locate responsive records. Responsive records
will not necessarily be released. There are numerous exemptions which permit
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or even require NEIC to deny the request in whole or in part. No
acknowledgement of the request is necessary.
The ESO will date-stamp and log in the request; coordinate collection of
relevant documents; coordinate with appropriate Regional, Headquarters, and
Department of Justice (DOJ) attorneys; and prepare the response to the FOIA
request.
Denials shall include the basis for withholding the documents requested
and a statement that the requestor has the right to appeal the denial. Only
the NEIC Director has the authority to deny disclosure of requested records,
in whole or part.
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H. PROJECT MANAGEMENT
This section discusses how NEIC activities shoxild be planned and
implemented so that work is conducted in a timely manner and meets case
objectives.
Projects undertaken by NEIC span a wide variety of activities ranging
from one employee performing technical or administrative tasks to numerous
employees from diverse disciplines working as a team to accomplish a series
of complex tasks. NEIC projects can include any or all of the following phases.
Project request
.Project team.formation
Background information review
Project plan preparation
Project plan implementation
Report preparation
Enforcement case support
This section of the manual discusses each phase and outlines pertinent
NEIC policies [Figure 1].
Not all these phases are required for each NEIC project. Moreover,
these phases are not necessarily discrete steps to be performed in order, before
going on to the next phase. A project team may repeat or return to any phase
during the life of the project and may work on several phases simultaneously.
PROJECT REQUEST
Requests may be received from other offices of EPA, other federal
agencies, state agencies, and local governments. Unless otherwise directed, all
requests should be sent to the Director of NEIC. Prior to preparing a request,
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PROJECT MANAGEMENT PROCEDURES
Written request Tor assistance
NEIC Director/
Management
Notification or acceptance to
requesting party
identify project objectives
identify applicable statutes
determine evidence to be
obtained
define workloads and
timeframes
identify level of technical
expertise required to evaluate
target source
3ACK
applicable
current and
historic data
background
information
investigative
methods
QA/QC procedures
document control
& chain-of-custody
procedures
safety requirements
& site safety plan
schedules of
investigation
activities
subsequent negotiations
and/or litigation
legal & technical
information searches
facility inspections
process & pollution
control technology
evaluations
sampling & monitoring
data collection
lab analyses and
evaluations
field trip reports
status or progress
report
technical
memoranda
enforcement
investigation reports
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requesting parties are encouraged to make a preliminary inquiry to determine
if NEIC can provide the assistance required. Depending on the type of
assistance needed, NEIC may respond to verbal requests. Acceptance of a
verbal request is normally given on a tentative basis pending receipt of a
written request. Any request should detail the objectives, relate those
objectives to the enforcement actions anticipated, specify general time frames
for the work and identify the technical and/or legal contacts) of the requesting
office. A written request facilitates understanding of the request by all
involved parties. However, routine or recurring requests may not require any
written request and NEIC, at its option, may accept any project without a
written request.
Requests received by NEIC have included those which require extensive
field investigative work on environmental problems (e.g., multi-media
investigations), as well as others which require only a limited technical or legal
review of a remedial or abatement proposal, or analytical support for Regional
enforcement cases. Other requests have involved development of enforcement
cases, performance audits, compliance evaluation inspections, pesticide
investigations, groundwater investigations and pollution control technology
assessments.
NEIC usually will notify the requesting party in writing when it accepts
the project. When possible, the notification also will include a tentative
schedule. Specific NEIC employees should be named as the contacts for
coordination with the requesting party. In addition, the acceptance notice
should identify any further information needed by NEIC.
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PROJECT TEAM FORMATION
Civil Investigations
Once a project is accepted, a project team is organized. It will include
representatives from those NEIC organization units participating in the
project. As appropriate, representatives from outside NEIC (e.g., the U,S.
Department of Justice) may also participate in team activities and discussions.
The initial functions of the project team are to determine:
• The applicable statutory/regulatory provisions
• The evidence which must be obtained to address project objectives
• The resources and scheduling necessary to achieve objectives
• The technical expertise necessary to evaluate the target or source
The team has the responsibility to identify and minimize potential
problems. Team members must be knowledgeable about their respective units'
activities in the particular project, and are responsible for describing or
defending that activity in subsequent negotiations and/or legal proceedings.
NEIC names a specific individual from the project team as the
coordinator. This person generally serves as a central point of contact with the
requesting party and is responsible for communicating and coordinating project
requirements and information with all involved parties. In addition, this
person must assure that a requestor's needs are met, including preparation of
the necessary documents and reports.
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The makeup and coordination of the project team is dictated by the type
of investigation conducted. Sometimes a "team" may consist of only one
person.
Criminal Investigations
In criminal investigations, the NEIC project coordinator is responsible
for sampling, analysis, and other technical activities and works with the EPA
Special Agent, FBI agent, and/or the appropriate U.S. Attorneys' office.
BACKGROUND INFORMATION REVIEW
'The purpose of a background information review is to gather information
pertinent to the project. This review usually begins before a project plan is
written and continues throughout the course of a project. The information
obtained is used to prepare the project plan, conduct the field investigation,
and write the report.
The scope and duration of the background review are related to the
project objectives and vary with project complexity. Background information
is available through the in-house and affiliated libraries and the NEIC
computerized data retrieval systems. Meetings may be held with EPA
Headquarters, Regional offices, and/or state and local agencies, and other
federal agencies to discuss the project, and to review and obtain copies of
relevant files. Where necessary, a site reconnaissance and/or preliminary site
visit provides verification and/or updating of background information.
Examples of information obtained and/or reviewed may include:
Applicable (current and previous) state and federal laws and
regulations
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• Current and previous permits and permit applications
• Previous inspection reports
• Case files from previous and pending enforcement actions/
litigation
• Correspondence between regulatory agencies and the facility
• Administrative Orders, settlement agreements, compliance
schedules
• Headquarters/Regional legal strategy and/or policy related to the
NEIC investigation
• Specific descriptions of facility processes and pollution control
systems
• Self-monitoring data
• Alternative control and treatment technology applicable to the
facilities) being investigated
• Available and state-of-the art sampling and analytical methods
• Information received through interviews of informants
In all investigations requiring field activities, knowledge of the potential
and existing safety hazards associated with the facilities or targets, and local
emergency services, is essential.
PROJECT PLAN PREPARATION
The format of a project plan will depend on the scope of the project.
Some projects require a detailed plan, describing the objectives, enforcement
history, facility operation, investigative methods, safety protocols, etc. In
others, a memorandum defining the objectives, tasks, and schedules may
suffice. A general outline of NEIC project activities may be included in the
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written response to a requesting party. After sufficient background
information has been obtained and evaluated, a detailed project plan can be
prepared. In many cases, the plan is not completed until planning meetings
have been held, files have been reviewed, and a preliminary site visit has been
made. Projects requiring only analytical services may not require a project
plan. In some cases, the NEIC project acceptance letter is a sufficient project
plan, as long as safety issues are addressed, as necessary, in the letter or in
a separate safety plan.
The project coordinator, in conjunction with other team members,
prepares the project plan detailing the scope, logistics, and objectives. In
addition, other items usually addressed in a project plan include the following.
• Background Information: For example, background information
for a hazardous waste treatment, storage, and disposal facility
investigation or an industrial facility evaluation, may include a
summary of processes, sources of pollution, their control or
treatment, applicable regulations, and permit requirements. In
those investigations where there is, or a potential exists for
groundwater pollution, information on the geologic and
hydrogeologic conditions, and on-site hazardous waste disposal
operations, are necessary for plan development.
• Investigative methods: For example, this should include a
description of sampling locations and procedures, analytical
requirements, the on-site records review, and collection of
operating process data and information.
• Quality assurance/quality control procedures
• Document control and chain-of-custody procedures
• Safety requirements and safety plan for on-site activities
• Schedules for investigative activities. This should include
schedules for field work, analyses, reports, etc.
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Prior to commencing a field investigation, a briefing session with all
project team members should be held. At that time, those aspects of the
investigation such as communication with facility personnel, sampling and
monitoringrequirements, test procedures and analyses, special technical needs,
legal aspects, and safety requirements can be discussed.
The project coordinator, as the identified contact person representing the
project team, should communicate closely with the requestor during the
planning phase to ensure the identified objectives are addressed. The
completed project plan represents an agreement between the requestor and
NEIC.
"Project plans (draft or final) for activities related to administrative/civil
enforcement cases will usually be transmitted by an Assistant Director or the
Deputy Director [Table 2]. the project coordinator numbers draft copies in red
ink and maintains a record showing who received draft copies and when such
copies were returned. The project coordinator should have all draft copies
returned. Changes and modifications desired by the requestor should be
communicated to the project coordinator who will assure that all affected
parties are apprised of the requested changes and provided an opportunity to
respond. Once all concerned parties agree to the project plan, it serves as a
reference document for the project. The plan is subject to change as
circumstances warrant and should contain a statement to that effect. Any
change(s) should be documented and appropriate parties notified.
Because of the greater sensitivity associated with criminal
investigations, the distribution and review of planning documents will be
limited. Transmittal external to the Office of Enforcement, of any technical
document prepared by NEIC for a criminal investigation, must be by the Chief,
Enforcement Specialist Office.
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PROJECT PLAN IMPLEMENTATION
Project activities include legal and technical information searches,
facility inspections, process and pollution control technology evaluations,
sampling, monitoring, laboratory analyses, laboratory evaluations and
analytical data reviews. To the extent possible, these activities are conducted
following established NEIC techniques and standard operating procedures,
EPA policy and program guidance and promulgated regulations. When new
methods or modifications to existing procedures are appropriate, these changes
will be documented.
Each team member must assure that all work is conducted safely and
that required safety equipment is used. All participants must adhere to the
applicable safety requirements.
Because the information generated during an investigation can be
subjected to close scrutiny during subsequent negotiations and/or litigation,
procedures ensuring the integrity and security of all evidence must be followed
throughout any project. See Part III, Evidence Management.
REPORT PREPARATION
NEIC prepares various reports in carrying out its enforcement program
responsibilities. These reports include field trip reports, status or progress
reports, technical memoranda, and enforcement investigation reports all of
which detail the who, what, where, when, and how of the enforcement activity.
NEIC reports can be used by Regional and Headquarters offices, other law
enforcement organizations, the U.S. Department of Justice and U.S. Attorneys
to support enforcement actions. Other reports prepared by NEIC include
internal procedures and operating manuals, technical reports and papers (e.g.,
20
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a report on an NEIC-developed laboratory procedure or field investigation
technique). Report format, including the color of the cover, should be in
accordance with the NEIC Report Services Operating Procedures Manual.
Enforcement reports are prepared by the appropriate individual or
project team members. All participants in the report preparation process must
assure that their individual contributions to the report and other documents
are accurate, fully supportable, and commensurate with Agency and NEIC
policies. Although the overall responsibility for preparation and content of the
reports (including all supporting documents) rests with the project coordinator,
all team members must accept responsibility for the quality, accuracy, and
admissibility of the information in the final report.
Reports are reviewed internally prior to distribution in either draft or
final form outside of NEIC. The NEIC reviewers can include the team
members and others directly involved in the project and report preparation
process, as well as appropriate Assistant Directors and their Branch Chiefs,
the Deputy Director and the Chief, Enforcement Specialist Office. External
review drafts should be transmitted according to Table 2. All external review
drafts will be numbered in red ink and stamped on the cover page with the
following statement: DRAFT REPORT - FOR AGENCY REVIEW ONLY, DO
NOT DUPLICATE. All other pages of the draft will also be marked DRAFT.
Reports prepared for criminal investigations will receive limited
distribution. Any draft or final report prepared by NEIC for a criminal
investigation which must be sent external to the Office of Enforcement will be
transmitted by the Chief, Enforcement Specialist Office.
Copies of NEIC civil enforcement reports are maintained by the library.
NEIC reports may receive public distribution through the National Technical
21
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Information Service (NTIS). Their availability to the public is announced
through the NTIS publication "Government Reports Announcement," and a fee
is set by NTIS for their reproduction and distribution in either paper or
microfiche form.
External distribution of enforcement reports not available through NTIS
must be authorized through the Chief, Enforcement Specialist Office who will
consult with the project coordinator and the appropriate EPA Office of
Regional Counsel.
Distribution is also restricted for reports that contain confidential
business information. Under several environmental laws, including TSCA,
businesses may claim certain information given to EPA to be confidential
business information. When a report contains confidential business
information, the title page and every page containing that information is
marked "CONFIDENTIAL."
All reports containing confidential information will be kept in secure
areas until restrictions are removed. Questions concerning the availability of
reports should be directed to the Enforcement Specialist Office.
ENFORCEMENT CASE SUPPORT
Completion and transmittal of a report does not signify the end of NEIC
involvement in an investigation. When the initial assistance activity leads to
an enforcement action, NEIC staff are available to:
• Participate in the preparation of the enforcement case and in
subsequent legal proceedings
• Assist in negotiations
22
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• Provide further technical consultation and assistance (e.g.,
additional field work, as necessary)
As necessary, NEIC personnel are available to serve as witnesses (fact
and expert) and to provide technical and legal assistance to government
attorneys before and during depositions, pretrial hearings, and trials.
The project coordinator is responsible for tracking any enforcement
action planned or being taken by the requesting party. In conjunction with the
Enforcement Specialist Office, this individual is also responsible for identifying
and offering any other support NEIC can provide.
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m. EVIDENCE MANAGEMENT
SAMPLE CONTROL
A sample is one type of physical evidence collected during an
investigation. An essential part of all NEIC enforcement investigations is
accounting for the evidence gathered. To ensure the integrity of the evidence,
the following sample identification and chain-of-custody procedures have been
established. The use of alternative procedures must be documented.
Sample Identification
'When in-situ measurements are made, the data are recorded directly
into logbooks or are electronically recorded, with identifying information
(project code, station number, station location, date, time, and samplers); field
observations; and remarks. Examples of in-situ measurements include pH,
temperature, conductivity, flow measurement, continuous air monitoring, and
stack gas analysis.
Samples, other than in-situ measurements, are identified by a sample
tag or other appropriate identification. These samples are removed and
transported from the sampling location to a laboratory or other location for
analysis. Whenever a sample is separated into portions to be provided to
another party, each portion is identified by a sample tag marked "split." In a
similar fashion, tags will be marked for "Blank" or "Replicate" samples. The
information recorded on the sample tag includes:
• Project code (a three-alpha-numeric digit assigned by NEIC)
• Project name
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• Station location (description)
• Station number (usually a two-digit code)
• Date
• Time
• Samplers' signatures
• Remarks (the samplers record pertinent information including
preservatives used
After collection, the samples are maintained in accordance with the
chain-of-custody procedures discussed below.
'Blank, uniquely numbered sample tags, logbooks, and other accountable
documents are provided by the Evidence Audit Unit.
Split Samples
NEIC policy is that sample splits will be offered to facility officials
whenever samples are collected during a civil investigation. Section 3007(a)(2)
of the Resource Conservation and Recovery Act (RCRA) states "...If the officer,
employee or representative obtains any samples, prior to leaving the premises,
he shall give to the owner, operator or agent-in-charge a receipt describing the
samples obtained and if requested a portion of each such sample equal in
volume or weight to the portion retained." Section 104 of CERCLA contains
similar requirements. Samples may also be split with other government
agencies. Whether split samples should be collected or given to facility
personnel in a criminal investigation is a decision to be made by the EPA
Special Agent assigned to the case and the prosecuting attorney (e.g., Assistant
U.S. Attorney).
25
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When samples are split, a separate Receipt for Samples form [Figures 2
and 3] is prepared for those samples and marked to indicate with whom the
samples are being split. The person relinquishing the split samples to the
facility or agency should request the signature of the party or his
representative acknowledging receipt of the samples. If a representative is
unavailable or refuses to sign, this is noted in the "Received by" space, when
splits are offered but refused, such refusal should be documented on the
Receipt for Samples form or in the logbook or elsewhere.
Chain-of-Custody for Samples
Due to the evidentiary nature of samples collected during enforcement
investigations,.possession must be traceable from the time the samples are
collected until they or the data derived from the samples are introduced as
evidence in legal proceedings. To maintain and document sample possession,
chain-of-custody procedures are followed.
Sample Custody
All samples collected as evidence are to be maintained under secure
conditions and documented chain-of-custody procedures. In general, as few
people as possible should be a part of the chain-of-custody. A sample is under
custody if:
It is in your possession
It is in your view, after being in your possession
You secured the sample in an appropriate container and made
arrangements to transport it to the laboratory
You transferred the sample to authorized personnel
It is held in a secure area
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Transfer of Custody and Shinment
• Samples are accompanied by a Chain-of-Custody record
[Figure 4]. When transferring the possession of samples, the
individuals relinquishing and receiving will sign, date, and note
the time on the record. This record documents sample custody
transfer. Figure 5 illustrates a completed Chain-of-Custody
record.
• Samples will be packaged properly* for shipment and dispatched
to the appropriate laboratory for analysis, with a separate Chain-
of-Custody record accompanying each shipment. Shipping
containers will be padlocked or otherwise sealed for shipment to
the laboratory.
• All shipments should be accompanied by the completed Chain-of-
Custody record. The original record will accompany the
shipment, and a copy will be retained by the project coordinator.
• Freight bills, post office receipts, and Bills of Lading must be
retained as part of the permanent documentation." If samples
can be sent by mail (not those samples suspected of containing
hazardous materials), the package should be registered with
return receipt requested.
Laboratory Custody
• Laboratories at NEIC are locked at all times. Access is limited
to authorized personnel and accompanied visitors.
• Laboratory personnel accept custody of the shipped samples and
verify that the information on the sample tags matches that on
the Chain-of-Custody record. Pertinent information as to
shipment, pickup, courier, etc., is entered in the "Remarks"
section. The laboratory recipient of the samples assures that all
samples are transferred to the proper analyst or stored in the
appropriate secure area.
See NEIC Standard Operating Procedures for Packaging, Marking, Labeling, and
Shipping of Samples (DOT requirements).
Copies of the bills and receipts may be provided to the NEIC Office of Planning and
Management to ensure proper payment. Originals of these documents are retained for
the project file.
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• The laboratory will use the sample tag number, sample station
number, or assign a unique laboratory number to identify each
sample.
• Laboratory personnel are responsible for the care and custody of
samples from the time they are received until the sample is
exhausted or while it is in storage.
• Each Laboratory Services branch will follow a system for tracking
samples through the laboratory and identifying the documents
generated during the analysis of those samples. Each employee
must understand the Standard Operating Procedures applicable
to his/her respective branch.
• After sample analyses and necessary quality assurance checks
have been completed, the remaining portion of the sample will be
kept secured as evidence until disposal is authorized, as described
below. All identifying tags, data sheets, and laboratory records
must be retained as part of the permanent documentation unless
they are contaminated. If records are contaminated they can be
enclosed in plastic and copied before being disposed of as
hazardous waste.
• The Assistant Director, Laboratory Services, in coordination with
the Chief, Enforcement Specialist Office, and the project
coordinator will authorize disposal of samples and remaining
sample portions for all administrative/civil investigations. For
criminal investigations, the Assistant Director, Laboratory
Services, will contact the EPA Criminal Investigations Division
or other appropriate offices (e.g., FBI, DOJ) to coordinate the
disposal of samples collected in support of criminal investigations.
DOCUMENT CONTROL
The goals of document control are: (1) to assure that all documents
generated or obtained by NEIC personnel will be accounted for when the
project is completed, and (2) to prevent premature or inadvertent disclosure of
information. This program includes a serialized document system, a document
inventory procedure, and an evidentiary filing system, operated and controlled
by the Evidence Audit Unit (EAU). The Document Control Officer (DCO)
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maintains separate locked files for confidential business information. The
protocol for the transmittal of documents generated during an enforcement
investigation is, in large part, implemented and monitored by the Enforcement
Specialist Office [Table 2].
To provide document accountability for technical investigations, each of
the document categories discussed below features a unique serialized number
assigned by EAU for each item within the category. Accountable documents
used or generated by NEIC employees include logbooks, sample tags, graphs,
Chain-of-Custody forms, Receipt for Samples forms, and bench sheets. The
project coordinator disposes of any unused serialized documents or may return
them to EAU. Unless prohibited by weather, waterproof ink should be used
to record all data. When weather conditions prohibit use of waterproof ink,
entries should be made using a nonsmear lead pencil (e.g., 2H or 3H).
Project Logbooks
The project coordinator is responsible for the transfer of logbooks to field
team members. Each person signs their logbook upon receipt and records all
information pertinent to the project in that logbook. A separate logbook is
used for each project.
Logbook entries should be dated, legible, and contain an accurate,
factual, and complete account of the investigation. Because the logbook is the
basis for the later written reports, it must contain only facts and observations.
Language should be objective, factual, and free of the inspector's personal
feelings, characterizations, speculation, or other terminology which is
inappropriate. Entries made by individuals other than the person to whom the
logbook was assigned must be dated and signed by the individual making the
entry.
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All project logbooks are the property of NEIC and are to be returned by
the project coordinator to the Evidence Audit Unit when a project has been
concluded. Representatives of facilities being inspected shall not be permitted
to copy or review logbook notes."
Sample Tags
Serialized sample tags are used to identify samples. After the tag has
been completed, it is attached to a sample. Transfer to another individual is
by use of a Receipt for Samples form [Figures 2 and 3]. Sample tags
contaminated with a hazardous substance will not be saved. The serial
number of the contaminated tag must be noted in the appropriate logbook and
the project coordinator notified. All information from contaminated tags is
recorded and the tags are photocopied, if possible, and disposed of. At the
completion of the field activities, all unused tags (including those damaged or
voided) must be returned to the project coordinator for disposal or returned to
EAU.
Chain-of-Custody Records
Serialized Chain-of-Custody Records are distributed in a manner similar
to that used for sample tags. When samples are transferred to laboratory
personnel, the recipient, after signing, files it in a secure place. When
dispatching samples via common carrier, the original accompanies the
shipment and is signed by the receiving laboratory personnel. Employees of
common carriers do not sign the Chain-of-Custody form.
As appropriate, the inspector may copy document and lor photograph logs for facility
representatives.
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When samples are split with the source or another government agency,
this is documented on a Receipt for Samples form. The tag serial numbers
from all splits are recorded on the form and a copy of the form is provided for
the source or agency. The white originals are returned to the project
coordinator.
Lidar Magnetic Tapes
Lidar data are recorded on the on-board computer. This computer is
used to analyze data and print results in report format. After analysis the
data are archived to a magnetic tape and maintained as an evidence record.
Laboratory Records
The instrument logbooks, bench sheets, and the analyst's personal
notebook(s) must contain information sufficient to recall and describe each step
of the analysis performed. Sufficient detail also is necessary to enable others
to reconstruct the procedures followed should the original analyst be
unavailable for testimony. Any irregularities observed during the testing
process need to be noted. If, in the technical judgment of the analyst, it is
necessary to modify a particular method to perform an analysis, the
modification must be justified and properly documented.
The numbered laboratory notebook assigned to an individual can be used
for more than one project; however, only one project should be discussed on
each page. That page must be labeled with the project code, dated, and signed
by the individual.
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Where applicable, a numbered instrument logbook is used to record
information relating to calibration and maintenance of a particular laboratory
instrument.
In addition to information documenting the analyses performed, field
analysts should document in their project logbooks, in their laboratory
notebooks, or on bench sheets the date and calibration results for mobile
laboratory equipment. A record is also kept of any incidents (e.g., the
disruption of electrical service to the laboratory, tampering with government
vehicles or equipment, etc.). Appropriate notations regarding visitors to the
mobile laboratory, such as facility personnel, are entered in the logbook.
Photographs
When photographs or videotapes are taken which show aspects of an
investigation, descriptions of those photographs or videotapes are entered in
a logbook. Identifying information (e.g., photographer, date, time, site location,
etc.) is normally entered into the logbook as photos (or groups of photos) are
taken, the photographer is not required to record the aperture settings and
shutter speeds for photographs taken within the normal automatic exposure
range. Special lenses, films, filters, or other image enhancement techniques
must be noted in the logbook, if they could distort or misrepresent what is
depicted in the photographs. Logbook notations and other documentation used
to account for film processing must be maintained. Once developed, the slides
or photographic prints are identified to correspond with the logbook
descriptions.
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Corrections to Documentation
If an error is made on an accountable document assigned to one
individual, that individual may make contemporaneous corrections simply by
drawing a line through the error, initialing it, and entering the correct
information. Any subsequent error discovered should be corrected by the
person who made the entry, the person who discovered the error, or another
person familiar with the work. All subsequent corrections must be initialed
and dated.
If a sample tag is separated from a sample and lost in shipment, or a tag
was never prepared for a sample, or a properly tagged sample was not
transferred with a formal NEIC Chain-of-Custody Record, a written statement
should be prepared detailing how, when, and to whom the sample was
collected, air-dispatched, or hand-transferred. The statement should include
all pertinent information, such as entries in field logbooks regarding the
sample, whether the sample was in the sample collector's physical possession,
or in a locked compartment until hand-transferred to the laboratory, etc.
Copies of the statement are distributed to the project coordinator and the
appropriate branch project files.
Consistency of Documentation
Each branch or division assembles its documents and cross-checks
information on corresponding sample tags, custody records, bench sheets,
analyst notebooks and other logbooks to ensure that data pertaining to each
particular sample is complete and consistent throughout the record. The file
should be arranged according to the procedures described in this manual under
"Evidentiary File." The project coordinator concurrently performs a cross-check
of field documents (logbooks, custody records, etc.) to ensure that the field
37
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information is complete. The laboratory similarly reviews their documentation
for completeness. The EAU will review files after these have been transferred
to EAU. Criminal case files are inventoried and numbered at the time of file
assembly by the EAU or the respective NEIC Branches/Divisions involved in
the case.
Branch/Division Files
After a Branch has completed its work for a particular investigation, all
documents generated from that project should be assembled in the branch or
Division file. Individuals may retain clean (no handwritten comments) copies
of documents for their personal files but only after personally verifying that the
original or similar copy is in the file. Each project coordinator is responsible
for assuring the collection and assembly of all documents relative to a project
at the time the project objectives are completed. The technical investigation
portion of criminal case files is numbered, inventoried, and transferred to EAU
for storage. Any record leaving the file after it has been transferred to EAU
must be signed out.
Evidentiary Files
When NEIC has completed the project objectives, all inventoried Branch
and Division file documents are reviewed and submitted to EAU, as specified
above. The evidentiary file should be organized into the following document
classes in this sequence.
• Privileged or confidential information
• Project plan
Sampling documentation
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- Sample tags
- Chain-of-Custody records
- Receipt for Samples form
Laboratory records (logbooks, bench sheets, etc.)
Project correspondence
Documents obtained from facilities being investigated
Background information
Report notes, calculations, etc.
Photos, maps, and drawings
Final reports)
Litigation/settlement documents
Other documents, as appropriate
Once deposited in the evidentiary file, documents may only be checked
out through the EAU document control personnel.
Litigation Documents
Any litigation reports, letters, memoranda, draft court documents, etc.,
from the Enforcement Specialist Office or other government attorney which
discuss legal matters or strategies should be separately identified in individual
Branch and Division files. These documents should be marked to identify the
privileged nature of their contents. Internal distribution is limited to the
appropriate project participants and their supervisors.
Confidential Business Information
Some information requested and obtained by NEIC may contain trade
secrets which companies may request be guarded as confidential business
information (CBI). In general, NEIC employees who have a need to know may
have access to CBI. When CBI is obtained, NEIC employees must follow
specific requirements to protect the information. The regulations to be
complied with by every employee are at 40 CFR Part 2, Subpart B. Those
39
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requirements vary with the particular law involved. If in doubt regarding the
requirements governing the handling of documents identified as "confidential"
or "trade secrets," employees should consult the Enforcement Specialist Office.
Of particular importance are the provisions of Section 14 of the Toxic
Substances Control Act (TSCA). A company may make confidentiality claims
for any and all information provided to the Agency with the condition that
specific criteria under TSCA are met. Once confidentiality under TSCA is
claimed, stringent procedures are followed to maintain the confidentiality of
that information. Refer to the TSCA Confidential Business Information
Security Manual, U.S. EPA, Office of Toxic Substances (approved November 1,
1985), for guidance. Before obtaining access to any CBI protected under TSCA.
every'person must obtain TSCA CBI clearance through the EAU.
All analytical work conducted on confidential samples will be performed
in a manner to preserve the confidentiality of the information generated. The
resulting documentation will be isolated from the Branch or Division files
when the records are called in by EAU.
EVIDENCE AUDIT
The Evidence Audit Unit (EAU) provides a continuing evaluation of
enforcement investigation activities. This evaluation addresses sample control,
document control, chain-of-custody, file assembly, and evidence security.
Some projects may be selected for an audit. The audit may include an
evaluation of sampling, sample custody, data recording, and any supporting
documentation.
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For administrative/civil investigations and the technical portions of
criminal investigations, EAU requires submission of all records for inclusion
in the evidentiary file at the completion of a project. These files are reviewed
to assure that all documents generated or obtained during the course of the
investigation are present. Any discrepancies are brought to the attention of
the project coordinator and the Chief, Enforcement Specialist Office.
QUALITY ASSURANCE
A Quality Assurance (QA) program is established at NEIC to assure that
data produced are of known and documented quality. QA program
requirements cover all measurement activities performed, supported, or
required by NEIC. The authority and responsibility for directing QA activities
within NEIC are delegated to the QA Officer (QAO). QA direction and
guidance are specified in the NEIC QA Program Plan.
The Quality Assurance Officer's responsibilities include development,
evaluation, and documentation of QA policies and procedures at NEIC. The
QAO is assisted by QA division representatives in implementing and
coordinating the QA program. All employees involved in sampling or
measurement activities are responsible for carrying out quality assurance
requirements in accordance with the QA Program Plan and any NEIC
standard operating procedure, and for informing the QAO or QA coordinators
of the need for corrective actions.
The QAO develops and conducts system audits to monitor the QA
program and the quality of data produced.
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APPENDIX
WITNESS GUIDELINES
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WITNESS GUIDELINES
The following suggestions are made for prospective witnesses in order
to lessen the fears and apprehensions which almost everyone has when first
testifying before a board, commission, hearing officer, or in court. Even those
who have testified previously encounter a certain anxiety when called for a
repeat performance. When a witness is properly prepared, both with regard
to the subject matter of testimony and conduct on the witness stand, there
should be little fear about testifying.
It is of utmost importance that the witness be thoroughly prepared on
the subject matter of the testimony. Only the witness can recall what occurred
in the field and/or laboratory and why. Since many cases are tried
substantially after the field and laboratory activities have been conducted, it
is imperative that adequate documentation be originally prepared in order that
a witness1 memory may be refreshed. A thorough and detailed review of all
relevant documents is the only way prospective witnesses can be adequately
prepared.
In order to assist witnesses on how they should conduct themselves, the
following suggestions are given.
The witness will be required to take an oath to tell the truth. The
important point is to remember that there are two ways to tell the truth - one
is a halting, stumbling, hesitant manner, which makes the trier of fact (the
hearing officer, judge, or jury) doubt that the witness is telling all the facts in
a truthful way. The other way is in a confident, straightforward manner,
which inspires faith in what is being said. It is most important that the
witness testify credibly. To assist a witness in testifying in such a manner, a
list of time-proven hints and aids are provided below.
GENERAL INSTRUCTIONS FOR A WITNESS
If you are to be a witness in a case involving testimony concerning the
appearance of an object, place, condition, etc., try to refresh your recollection
by again inspecting the object, place, condition, field notes, and records, etc.,
before the hearing or trial. While making such inspection, close your eyes and
try to picture the item and recall, if you can, the important points of your
testimony. Repeat this until you have thoroughly familiarized yourself with
the features of your testimony that will be given.
Before you testify, visit a courtroom trial or administrative hearing and
listen to other witnesses testifying. This will make you familiar with such
surroundings and help you understand some of the things you will come up
against when you testify. You should consider being present at the hearing of
the matter in which you are to testify in sufficient time to hear other witnesses
testify before you take the witness chair. This, however, may not always be
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possible since, on occasion, witnesses are excluded from the courtroom until
they testify.
A good witness listens to the question and then answers calmly and
directly in a sincere manner. The facts should be well known so they can be
communicated. Testimony in this manner applies to cross-examination as well
as direct examination.
Wear neat, clean clothes when you are to testify. Dress conservatively.
Do not chew gum while testifying or taking an oath. Speak clearly and do not
mumble.
DIRECT EXAMINATION
In a discussion on administrative procedures, E. Barrett Prettyman,
retired Chief Judge, U.S. Court of Appeals for the District of Columbia, gave
the following advice:
"The best form of oral testimony is a series of short, accurate and
complete statements of fact. Again it is to be emphasized that the
testimony will be read by the finder of the facts, and that he will draw
his findings from what he reads. Confused, discursive, incomplete
statements of fact do not yield satisfactory findings."
Stand upright when taking the oath. Pay attention and say "I do"
clearly. Do not slouch in the witness chair.
Do not memorize what you are going to say as a witness. If you have
prepared answers to possible questions, by all means do not memorize such
answers. It is, however, very important that you familiarize yourself as much
as possible with the facts about which you will be called upon to testify.
During your direct examination, you may elaborate and respond more
fully than is advisable on cross-examination. However, when you elaborate,
do not ramble and do not stray from the main point raised by the lawyer's
question. The taking of testimony is a dialogue, not a monologue. If your
testimony concerns a specialized technical area, the court or hearing officer
will find it easier to understand if it is presented in the form of short answers
to a logical progression of questions. In addition, by letting the lawyer control
the direction of your testimony, you will avoid making remarks which are
legally objectionable or tactically unwise.
Be serious at all times. Avoid laughing and talking about the case in
the halls, restrooms, or any place in the building where the hearing or trial is
being held.
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While testifying, look at the judge, hearing officer, or jury most of the
time, and speak frankly and openly as you would to any friend or neighbor.
Do not cover your mouth with your hand. Speak clearly and loudly enough so
that anyone in the hearing room or courtroom can hear you easily. At all
times, make certain that the reporter taking the verbatim record of your
testimony is able to hear you and record what you actually say. The case will
be decided entirely on the words that are finally reported as having been the
testimony given at the hearing or trial. Always make sure that you give a
complete statement in a complete sentence. Half statements or incomplete
sentences may convey your thought in the context of the hearing, but may be
unintelligible when read from the cold record many months later.
CROSS-EXAMINATION
Concerning cross-examination, Judge Prettyman gives the following
advice to prospective witnesses.
"Don't argue. Don't fence. Don't guess. Don't make wisecracks. Don't
take sides. Don't get irritated. Think first, then speak. If you do not
know the answer, but have an opinion or belief on the subject based on
information, say exactly that and let the hearing officer decide whether
you shall or shall not give such information as you have. If a 'yes' or 'no'
answer to a question is demanded but you think that a qualification
should be made to any such answer, give the 'yes' or 'no' and at once
request permission to explain your answer. Don't worry about the effect
an answer may have. Don't worry about being bulldozed or
embarrassed; counsel will protect you. If you know the answer to a
question, state it as precisely and succinctly as you can. The best
protection against extensive cross-examination is to be brief, absolutely
accurate, and entirely calm."
Unless you are testifying as an expert, the hearing officer or judge will
permit only testimony, based upon direct knowledge, as to the facts. You
usually will not be allowed to testify about what someone else has told you
(hearsay), and will not be allowed to provide your opinions or conclusions.
Always be polite, even to the attorney for the opposing party.
Do not be a smart aleck or cocky witness. This will cost you your
credibility and the respect of the trier of the facts in the case.
Do not exaggerate or embroider your testimony.
Stop instantly when the judge or hearing officer interrupts, or when the
other attorney objects to what you say. Do not try to "sneak" your answers
into the record.
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Do not nod your head for a "yes" or "no" answer. Speak out clearly. The
reporter must hear an answer to record it.
If the question is about distances or time and your answer is only an
estimate, be certain that you say it is only an estimate.
Listen carefully to the question asked of you. No matter how nice the
other attorney may seem on cross-examination, he may be trying to hurt you
as a witness. Understand the question. Have it repeated if necessary; then
give a thoughtful, considered answer. Do not give a snap answer without
thinking. You cannot be rushed into answering, although, of course, it would
look bad to take so much time on each question that the judge, hearing officer,
or jury would think that you are making up the answers.
Answer the question that is asked, not the question that you think the
examiner (particularly the cross-examiner) intended to ask. The printed record
shows only the question asked, not what was in the examiner's mind, and a
nonresponsive answer may be very detrimental to your side's case. This
situation exists when the witness thinks "I know what he is after, but he
hasn't asked for it." Answer only what is asked.
Explain your answers, if necessary. This is better than a simple "yes"
or "no." Give an answer in your own words. If a question cannot be answered
truthfully with a "yes" or "no," you have a right to explain the answer.
Answer directly and simply the question asked you and then stop.
Never volunteer information.
If by chance your answer was wrong, correct it immediately; if your
answer was not clear, clarify it immediately.
You are sworn to tell the truth. Tell it. Every material truth should be
readily admitted, even if not to the advantage of the party for whom you are
testifying. Do not stop to figure out whether your answer will help or hurt
your side. Just answer the question to the best of your ability.
Give positive, definite answers when at all possible. Avoid saying "I
think," "I believe," "in my opinion." If you do not know, say so. Do not make
up an answer. You can be positive about the important things which you
naturally would remember. If asked about little details which a person
naturally would not remember, it is best to say that you do not remember.
Do not act nervous. Avoid mannerisms which will make it appear that
you are scared, not telling the truth, or all that you know.
Above all, it is most important you do not lose your temper. Testifying
at length is tiring. It causes fatigue. You will recognize fatigue by certain
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symptoms: (a) tiredness, (b) crossness, (c) nervousness, (d) anger, (e) careless
answers, (f) willingness to say anything or answer any questions in order to
leave the witness stand. When you feel these symptoms, recognize them and
strive to overcome fatigue. Remember that some attorneys, on cross-
examination, are trying to wear you out so you will lose your temper and say
things that are not correct, or that will hurt you or your testimony. Do not let
this happen.
If you do not want to answer a question, do not ask the judge or hearing
officer whether you must answer it. If it is an improper question, your
attorney will object for you. Do not ask the presiding officer, judge, or board
member for advice.
Do not look at your attorney or at the judge or hearing officer for help
in answering a question. You are on your own. If the question is an improper
one, your attorney will object. If the judge or hearing officer then says to
answer it, do so.
Do not hedge or argue with the opposing attorney.
There are several questions which are known as "trick" questions. That
is, if you answer them the way the opposing attorney hopes you will, he can
make your answer sound bad. Here are two of them.
1. "Have you talked to anybody about this matter?" If you say "no,"
the hearing officer or judge, or a seasoned jury, will know that is
not true because good lawyers always talk to the witnesses before
they testify. If you say "yes," the lawyer may try to imply that
you were told what to say. The best thing to say is that you have
talked to the attorney and that you were just asked what the
facts were and to testify truthfully.
2. "Are you getting paid to testify in this matter?" The lawyer
asking this hopes your answer will be "yes," thereby implying
that you are being paid to say what your side wants you to say.
Your answer should be something like, "No, I am not getting paid
to testify; I am on salary and there is no other compensation for
my time beyond the reimbursement for my travel."
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